United States v. Serrato, s. 12–8040

• Decision Date: 07 February 2014
• Docket Number: Nos. 12–8040,12–8041.,s. 12–8040
• Citation: 742 F.3d 461
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Eddie SERRATO, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Sotero Negrete, Defendant–Appellant.

742 F.3d 461

UNITED STATES of America, Plaintiff–Appellee,

v.Eddie SERRATO, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Sotero Negrete, Defendant–Appellant.

Nos. 12–8040, 12–8041.

United States Court of Appeals, Tenth Circuit.

Feb. 7, 2014.

Ronald G. Pretty, Cheyenne, WY, for Appellant Eddie Serrato.

James H. Barrett, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, Interim, with him on the briefs), Cheyenne, WY, for Appellant Sotero Negrete.

Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief), Lander, WY, for Appellee.

Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON ^*, District Judge.

JACKSON, District Judge.

Eddie Serrato and Sotero Negrete are drug dealers. In this case they both were found guilty of multiple counts related to their involvement in a methamphetamine trafficking conspiracy centered in Casper, Wyoming. On appeal, Mr. Serrato raises four challenges to his conviction and sentence: (1) the prosecutor engaged in misconduct that violated his Fifth and Sixth Amendment rights; (2) there was an unconstitutional variance between the crime charged (a single conspiracy) and the evidence presented at trial (two separate conspiracies); (3) the district court abused its discretion in its calculation of his offense level under the federal sentencing guidelines; ¹ and (4) the district court erred in denying his motion to suppress evidence obtained from a traffic stop that constituted an unconstitutional seizure under the Fourth Amendment. Mr. Negrete raises arguments one and two above and adds that the evidence was insufficient to support his conviction of using or carrying a firearm in furtherance of a drug trafficking crime.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background.

The somewhat complicated story that led to the defendants' convictions began in 2009 when Wyoming law enforcement began to scrutinize the activities of Mr. Negrete as a possible distributor of methamphetamine in Casper. During the next two years law enforcement kept track of Mr. Negrete through physical and video surveillance, authorized wiretaps, undercover work, controlled buys, and other means. This investigation revealed that Mr. Negrete was redistributing methamphetamine obtained from sources in Utah and Washington, namely, Eddie Serrato from Utah and Oscar Cervantes (who was charged but pleaded guilty in the case) from Washington. We will leave further discussion of the facts to our discussion below of the issues raised on appeal.

B. Procedural Background.

On July 22, 2011, Mr. Negrete and Mr. Serrato were charged in a multi-count, multi-defendant indictment. Both defendants pleaded not guilty. The defendants subsequently filed various pretrial motions, including a motion to suppress by Mr. Serrato challenging the constitutionality of an April 6, 2011 traffic stop, which the district court denied.

The combined trial against Mr. Serrato and Mr. Negrete, conducted between March 7 and 15, 2012, resulted in Mr. Serrato's conviction on two counts: conspiracy to possess with intent to distribute and to distribute methamphetamine; and attempt to possess with intent to distribute and aiding and abetting the distribution of methamphetamine. Mr. Negrete was convicted on the same two counts plus nine others including conspiracy to launder money; the use and carrying of a firearm in furtherance of a drug trafficking crime; distribution of methamphetamine; possession with intent to distribute methamphetamine; and being a felon in possession of a firearm. He was acquitted on one count of possession of a firearm in furtherance of a drug trafficking crime.

The court subsequently held sentencing hearings on May 24, 2012. The government had filed, prior to the trial, notice of its intent to seek enhanced sentence penalties pursuant to 21 U.S.C. § 851. The recommended imprisonment range under the Guidelines for both defendants was 360 months to life in prison. The court sentenced Mr. Negrete to 360 months and Mr. Serrato to 300 months, each sentence to be followed by 10 years' of supervised release, plus fines and special assessments.

II. DISCUSSION

We address in turn the two issues raised by both defendants followed by the two additional issues raised by Mr. Serrato and the one additional issue raised by Mr. Negrete.

A. Prosecutor's Comments.

Both defendants challenge as prosecutorial misconduct two separate remarks made by government counsel during trial—one in the course of making an objection during the defendant's cross-examination of Drug Enforcement Administration Special Agent Ryan Cox (as to which the district court denied a motion for a mistrial), and the other in counsel's rebuttal closing argument (as to which the court denied defendants' objections). They contend that the misconduct violated their constitutional rights under the Fifth and Sixth Amendments.

The denial of a motion for a mistrial based upon prosecutorial misconduct is generally reviewed for abuse of discretion. United States v. Harlow, 444 F.3d 1255, 1265 (10th Cir.2006); United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.1996). However, we recently held that when a defendant objects to a prosecutor's remark but does not move for a mistrial, and the district court erroneously overrules the objection, our standard of review is whether the error was harmless beyond a reasonable doubt. United States v. Begay, No. 12–2202, ––– Fed.Appx. ––––, ––––, 2013 WL 6671208, at *7 (10th Cir. Dec. 19, 2013) (citing United States v. Pulido–Jacobo, 377 F.3d 1124, 1134 (10th Cir.2004)). Under either standard we first consider whether the prosecutor's conduct was in fact improper. If so, we examine whether any error committed by the district court in responding to the misconduct was harmless. In the latter regard we consider “the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole.” United States v. Martinez–Nava, 838 F.2d 411, 416 (10th Cir.1988).

Turning to the first incident, during cross-examination of Special Agent Cox defense counsel asked whether the government had intercepted phone calls involving Mr. Serrato other than recordings from jail calls. Special Agent Cox responded that he believed they did have other such recordings. When defense counsel asked whether Agent Cox would play the recording, Agent Cox responded “I didn't prepare it today.” Serrato App. Vol. III at 902. Defense counsel began to respond, “So you just believe—”, at which point government counsel interrupted with a speaking objection: “Your Honor, I'm going to object now. Counsel has every bit of discovery. If counsel wants to play a recording, he can play it. It's not Mr. Cox's responsibility to bring the recordings for Mr. Pretty [Defendant Serrato's attorney]. He's got them in discovery.” Id. at 902–03.

Mr. Serrato's attorney then asked for a sidebar and moved for a mistrial on the basis that any insinuation that Mr. Serrato needed to put on evidence violated his Fifth Amendment right to remain silent. Mr. Negrete's attorney joined in the motion. The district court denied the motion for a mistrial. After noting that the court understood government counsel's comment to mean that “the defendants can access the material and play it and it wasn't this witness' obligation to bring all of the production associated with this case,” the court indicated that it would instruct the jury, similarly to previous admonitions, that the defendants “have no burden even to cross-examine witnesses, let alone to produce or play or put forward evidence of any kind because they have no burden whatsoever in the case.” Id. at 904.

Both defense lawyers responded that such an instruction would not cure the violation. Mr. Serrato's counsel requested, as an alternative if the court denied the mistrial motion, that the court admonish the government in front of the jury. The court stood by its ruling, stating that the comment did not rise to the level of admonition or criticism of counsel. Then, immediately following the sidebar, the court instructed the jury as follows:

I did want to make sure the jury is clearly and well instructed that the defendants in the case have no burden of proof whatsoever. The entire burden of proof throughout the entire course of the trial rests on the shoulders of the Government and that proof is proof beyond a reasonable doubt. The defendants not only have no obligation or burden to come forward and testify or tell their side of the story, defense counsel need not even cross-examine Government witnesses or seek to impeach Government witnesses. They do so to bring forward evidence and facts that the jury may consider, but they have no burden of proof whatsoever. And so any suggestion or inference that the defendants have information that they should play or if they have it, they should bring it forward is an improper inference. They have no burden of proof whatsoever. The burden from the beginning through the entire course of the trial rests on the shoulders of the Government.

Id. at 905–06.

The second challenged remark occurred during the government's rebuttal closing argument. The defense called into question the veracity of the testimony of a confidential informant that Mr. Negrete had pointed a gun at him. The informant had described the incident to Special Agent Craig Malone of the Wyoming Division of Criminal Investigation. Counsel for Mr. Negrete argued that, according to the informant's testimony, when the informant reported the incident to Special Agent Malone, he seemed disinterested. Counsel also commented that after the informant so testified, the government had not recalled Special Agent Malone to confirm the informant's testimony despite the government's reliance on this “important event.” Serrato App. Vol. III at 988–89. Counsel stated, “...